Mills v. Norfolk Southern Ry. Co.

• Decision Date: 03 December 1999
• Docket Number: No. A99A2324, A99A2325.,A99A2324, A99A2325.
• Citation: 526 S.E.2d 585,242 Ga. App. 324
• Parties: MILLS et al. v. NORFOLK SOUTHERN RAILWAY COMPANY. Norfolk Southern Railway Company v. Mills et al.
• Court: Georgia Court of Appeals

526 S.E.2d 585

242 Ga. App. 324

MILLS et al. v. NORFOLK SOUTHERN RAILWAY COMPANY.

Norfolk Southern Railway Company v. Mills et al.

No. A99A2324, A99A2325.

Court of Appeals of Georgia.

December 3, 1999.

Reconsideration Denied February 11, 2000.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Athens, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Atlanta, for appellants.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Donald L. Swift III, Atlanta, for appellees.

ELDRIDGE, Judge.

This case comes on appeal after the trial court granted a new trial on special grounds to Norfolk Southern Railway Company¹ on the train-vehicle collision that occurred when the automatic warning devices at the crossing failed to timely activate before the vehicle entered the crossing. The special ground for the grant stated that testimony as to prior notice of the gravity of danger from activation failures of automatic crossing warning devices, evidenced by similar occurrences, should not have been admitted, because each such occurrence had not been shown to be substantially similar by a separate evidentiary foundation for each occurrence. Federal regulations, however, mandated that all automatic warning devices provide the same minimum standard of configuration and performance for all such automatic warning devices at all crossings so that each performs the same. See 49 C.F.R. § 234.1;² 59 FR 50105. Thus we hold that all the prior similar occurrences had sufficient substantial similarity to the activation failure in this case to be relevant and material for admission into evidence, because all automatic warning devices had to perform to a minimum federal standard, creating substantial similarity in function as to all other automatic warning devices, as well as to the duty of the train crews when a failure occurred. See 49 CFR § 234. The trial court's grant of a new trial on this special ground requires reversal as a matter of law.

Case No. A99A2324

James William Mills and Lorraine Mills Stephens³ brought this wrongful death action. The collision killed Christopher Mills and Patrick Mills, the minor children of James and Vanlie Pearl Mills, now deceased.

1. Appellants' first enumeration of error is that the trial court erred in granting Norfolk Southern's motion for new trial on the special ground that the trial court erred in admitting evidence of prior notice of the existence and gravity of danger at the first trial. We agree and reverse, vacating the order, and order the trial court to reinstate the original judgment.

The wrongful death action involved issues of negligence and causation based upon the malfunctioning of the railroad's grade crossing warning system through negligent maintenance together with the negligent failure of the train crew to keep a proper lookout, to sound the horn in warning, and to slow down when approaching the crossing when such malfunction became apparent to the train crew from the absence of flashing warning lights at the crossing, indicating an activation failure.⁴

The crossing was controlled by an "active" warning system that should have activated lights, bells, and a gate arm when the train approached within the range of the sensors. The failure to observe timely the absence of warning signals at the crossing evidenced the train crew's inattention. The failure of engineer Hick to sound the horn as the train approached the crossing further evidenced his failure to observe the blow post, which warns of the approach to the crossing and indicates when to blow the horn.

A high fence blocked Mills' view of the approaching train as he approached the crossing. The vehicle entered the crossing just as the lights began to flash but before the gate came down; Mills could not stop and continued into the crossing, where the train then struck the vehicle. The collision also occurred before the gates came down to prevent entry onto the crossing. The fact that the gates came down after the train entered the crossing evidenced the delayed activation failure of the automatic warning system. Under federal regulations, the warning lights must flash at least twenty seconds prior to the arrival of the train and the gate must begin to descend at least three seconds after the lights begin to flash and close at least five seconds before the train arrives.⁵

Despite the federal regulations that an active warning system must activate warning devices 20 seconds before the train enters the crossing and the automatic warnings have 3.5 to 4 seconds of flashing lights and bells, followed by the descent of the gate over the next 20 seconds, this automatic warning system failed to meet such minimum federal standards. 49 CFR § 234.5; 56 FR 33728. Under the regulations, the bells stop, but the gate must be completely down with the lights flashing when the train enters the crossing. When the train exits the crossing, the lights stop flashing immediately and the gates go up.

In this case, the facts all fit a delayed activation failure. A "delayed activation failure" occurs when the warning is activated late by the train after it passes the sensor so that the train reaches the crossing before the gates go down and before motorists can receive a proper warning of the approach of the train. See 49 CFR § 234.5; 56 FR 33728. Delayed activation failures result from short circuits in the track circuit monitored by warning system control devices; this type of failure is called a "shunt." Track circuits consist of the crossing and track approaches in both directions from the crossing. A short shunt registers on the warning system as a train, activating the warning devices. When the shunt does not move for 20 seconds, the control device releases the warning devices at the crossing, which acts as if the train just exited the crossing. The lights, bells, and gates immediately cease operation. The control device continues to search for trains down both lengths of track for approaching trains; however, the control device can search down the prescribed length of track in only one direction. If there is a standing shunt, the control device cannot search beyond the shunt's location for an actual train. The control device cannot sense a train until it crosses a standing shunt. The standing shunt delays the activation of warning devices and results in a false "all clear."⁶

Plaintiffs used several kinds of evidence to prove a delayed activation failure caused the deaths in the train-vehicle collision: (1) post-impact physical evidence at the scene, which showed that the gate arms were not down at impact between the train and vehicle; (2) the witnessed operation of the warning system immediately after the train exited the crossing after the collision, demonstrating a continuing failure; and (3) maintenance records for the warning system at the crossing, showing delayed activation failures occurring on an intermittent basis before the time of the collision. From the train crew, plaintiffs also presented evidence of similar occurrences to establish the foreseeability of this danger, the duty to exercise ordinary care, and causation.

Maintenance records for this crossing kept by signal maintainer Jones showed that between the inspections in December 1987 and January 1988 that a "false alarm" malfunction occurred. Delayed activation failures are first proceeded by "false alarm" malfunctions. Norfolk Southern's training and instruction materials stated that a signal maintainer must look for and correct the cause of prior "false alarm" malfunctions, even if they clear up, because the condition may deteriorate into a delayed activation failure. Jones failed to do this before the collision. Thus maintenance did not discover and correct the cause of the delayed activation failures prior to the collision.⁷

Routine inspections of this warning system after the collision showed that delayed activation failures had chronically occurred prior to the collision. This indicated that delayed activation failures had occurred on an intermittent basis at the time of the collision. Thus, plaintiffs made out a prima facie case that there was a delayed activation failure at the time of the train-vehicle collision and a failure to maintain by the railroad, which caused the warning devices at the crossing not to work timely.

To prove the liability of Norfolk Southern, plaintiffs proved the negligent maintenance of the crossing warning signals with a delayed activation failure and proved the negligent acts and omissions of the train crew in not keeping a proper lookout, in not blowing a warning of the train's approach, and in not appropriately reducing speed when approaching this dangerous crossing when they knew or should have known that a delayed activation failure existed at the crossing, because the warning lights had not flashed and the gate had not descended. Such negligent failure to react appropriately in reducing speed, blowing the horn, and keeping a proper lookout to a delayed activation failure depended upon the foreseeability of the general consequences and danger to the public from the warning signal's failure at any crossing with any automatic warning equipment with a short shunt, regardless of the design, manufacture, or configuration. The amount of time that a warning system must operate and the sequencing before a train enters a crossing have been mandated for all automatic systems, all circumstances, and all railroads by federal regulations, so that there exists substantial similarity in function and requirements as a matter of federal regulations for purposes of uniformity. See 49 CFR § 234. Therefore, the specific control device, signal warning equipment, wiring sensor, and defect had nothing to do with the duty of the train crew under all circumstances where a delayed activation failure occurred, because the train crew's duty was the same in all cases, i.e., slow the approach...